The International Criminal Court

After countries throw off oppressive regimes or emerge from civil war they face a period of (what we now call) transitional justice. During this period they face the question of what should be done about prosecuting and punishing political, military, and ethnic leaders who organized and carried out severe human rights violations. The International Criminal Court (ICC) is designed to prevent impunity for human rights crimes, genocide, war crimes, and crimes against humanity. The ICC was based on the models and experience of the Nuremberg Tribunal, the International Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.

The ICC was created in 1998 when 120 States adopted the Rome Statute of the International Criminal Court setting forth the jurisdiction and functions of the Court. This treaty came into force in 2002. In the following year the member states adopted Rules of Procedure and Evidence, Elements of Crimes, an Agreement on Privileges and Immunities, and elected the Court's 18 judges (McGoldrick et al. 2004).

The ICC has a prosecutor who receives petitions, conducts investigations, and prosecutes grave international crimes (Articles 34, 42). The Prosecutor may accept referrals made by State Parties or by the UN Security Council, and may also accept information about crimes from individuals and nongovernmental organizations.

The ICC operates as a backup system to efforts at the national level to prosecute war crimes and human rights violations. Under the doctrine of complementarity, the Court's jurisdiction comes into play only when a country is unwilling or unable to make a good faith effort to prosecute and convict violators. A person alleged to have committed a crime under the ICC Statute whose country is unwilling or unable to prosecute him or her falls under the jurisdiction of the ICC if (1) the country of which the accused is a citizen is a party to the Statute, or has authorized the jurisdiction of the court in the matter; (2) the country in whose territory the accused allegedly committed the crime is a party to the Statute, or has authorized the jurisdiction of the court in the matter, or (3) the crime the accused allegedly committed is referred to the Court by the Security Council.

The Court's jurisdiction is limited to “the most serious crimes of concern to the international community as a whole” (Rome Statute, Article 1). The Statute identifies four crimes over which the ICC may exercise jurisdiction: (1) genocide; (2) crimes against humanity; (3) war crimes; and (4) the crime of aggression against another state.

As of 2014, 122 countries have ratified the ICC. Prominent countries that have not joined include China, India, Israel, Russia, and the USA. No Middle Eastern country except Jordan has ratified.